Temporary Child Custody Basics

Having temporary child custody orders in effect before your divorce is finalized can prevent a lot of headaches. Not only can it help avoid misunderstandings with the other parent, it can also give you some recourse if the other parent doesn't comply with an agreed upon custody arrangement.

By WomansDivorce Staff | Answers by Brette Sember, J.D.

Temporary child custody is a legal arrangement in which the court grants custody to one parent until a final custody order is established. A temporary child custody order can be established as part of your divorce petition, separation agreement, a restraining order (if your state permits it), or as a totally separate court order.

It’s very important to get temporary custody orders if you want the children to remain with you when you split from your spouse. It’s always best to reach a mutual agreement regarding custody of the children. But if you are unable to reach an agreement, the decision will be made by the court. Temporary child custody orders typically specify the duration of the custody arrangement, where the child will live and the responsibilities of the custodial parent, the parenting time provisions, and the rights of each parent.  

There are situations in which emergency child custody is granted to maintain the well-being and safety of a child. These emergency orders are issued in situations where the child is in danger and immediate action is required. This generally includes instances of physical or sexual abuse of the child, if the other parent abuses drugs or alcohol in the presence of the child, or if the potential exists for that a parent will kidnap the child. (You can also read more about what makes a parent unfit for custody for more information). Either a parent, relative, or a guardian can apply for emergency child custody. It’s important to note that emergency orders will only be in effect until a court hearing determines a more long-term arrangement.

Like the name implies, temporary child custody is not a permanent custody determination. How long temporary custody orders last varies by state and the circumstances of the divorce or custody dispute, but may last several months or longer. Generally, the temporary orders will remain in place until there is a final order addressing child custody or if the temporary order is cancelled by a motion to vacate.

Final custody arrangements will be determined in either the divorce proceedings or during a custody trial. It’s important to note that temporary custody orders may establish the status quo regarding the final custody order. In other words, if the temporary custody arrangements are working well, a judge would be less inclined to change them when making a final decision regarding custody during a divorce or custody hearing.

Temporary Child Custody FAQs

The following faqs illustrate the importance of having temporary child custody orders in place when the parents are no longer living together.

Custody Issues While Separated

How to Get Temporary Custody

Parental Kidnapping Concerns

Changing Temporary Custody

Appealing and Enforcing Temporary Orders

Grandparents Seeking Temporary Custody

How do we handle custody issues while we're separated?

Lindsey's Question: I've decided to leave and am trying to get 'all my ducks in a row'. I want to retain full legal custody of the children and move back to my home town. I want him to have visitation and I don't even want child support. What options do I have? I want to get something in writing, since I'm not able to pay for a divorce as of yet.

Brette's Answer: In situations like this, having an agreement that can be enforced is best. You can file for an order of custody and visitation in family court. If you're both in agreement you can file a stipulation that says what you've agreed to.

How do I establish visitation rules while we’re separated?

Mia's Question: My husband and I are starting the process of divorce. He is taking our two kids (5 and 8 years of age) to Lakeland with his girlfriend of 4 months to spend the night every weekend (I work Friday through Monday). All that I ask is that they give me a physical address so I can make sure my kids are not in danger and know exactly where they are. Is there anything I can do as their mother legally?

Brette's Answer: Talk to an attorney about getting a temporary order of custody in place. It is helpful to have your agreement in writing with clear terms so everyone knows what their responsibilities are. Both parents should have each other's addresses and this can be stipulated in the order as well. 

What is the process for getting temporary child custody?

Tricia's Question: What is the process for getting temporary child custody? How is it filed? Can we get it in the same day?

Brette's Answer: Go to family court and tell them you need to file a petition for emergency temporary custody. They will help you complete the right paperwork. Depending on your state laws and local court schedule, it can be possible to get a temporary order the same day.

If he has taken all the money, you can file a petition and a motion for emergency spousal support. Good luck.

How do I file for custody if I haven't filed for a divorce yet?

Nora's Question: I recently left my husband of 7 years and moved in with my parents. I have been the primary care giver of our 5 year old son. What do I do to file for sole custody? Also, what can I do to enroll my son in the school district by my parents' house?

Brette's Answer: File a petition in family court for custody. You want a temporary order, so be sure to ask for that when you file. To enroll in school, you need to call the district as soon as they are open and find out what their procedure is.

Can I get temporary custody without him knowing about it?

Rushelle's Question: My husband is threatening to take my kids. How soon will he know about it if I file for temporary child custody? What is the process? Can I make it to where he doesn't know I have temporary custody?

Brette's Answer: It is possible to obtain an emergency order of temporary child custody without the other parent present, but a hearing is always scheduled for very soon after to give the other parent a chance to be heard.

Do I need to have the kids with me to file for temporary custody?

Chaz's Question: Do I have to have my kids in my custody in order to file for temporary custody?

Brette's Answer: You can file first. Good luck.

Do you need an attorney to file for temporary child custody?

Rhonda's Question: Do you need to hire an attorney to file for temporary child custody?

Brette's Answer: No.

Who is usually granted temporary custody?

Ashley's Question: Who is usually granted the temporary child custody? My ex took my son away from me and refuses to give him back. I have a warrant for my arrest and he's holding this over my head. I have a criminal history as a minor and am on probation and I have to check in with my P.O. every week along with random urine tests. How can I get my baby home? What's the way I can do it soonest?

Brette's Answer: Courts like to stay with the status quo, so it's likely your son will stay with his father. You can get visitation though and continue to fight for custody. As the case goes on, you're going to need to take a drug test I imagine, show that you live in a stable environment, that you have good parenting skills and that it would be best for your child to live with you.

When do temporary custody orders go into effect?

Ruth's Question: My ex filed Temporary Child Custody Orders with the court and we have a hearing in a few days. Do the Temporary Custody papers go into effect as soon as they are notarized or after the hearing? Also, I need to file an answer but I can't find a form for this. Do I also have to pay a filing fee for submitting an answer to his complaint?

Brette's Answer: Temporary orders take effect immediately. You usually walk out the door with the papers. Call the court clerk to ask which form to use for an answer. Ask if there is a filing fee. This varies in each state. Good luck.

Can temporary custody be established outside of the court?

Valery's Question: I am a grandmother of a 7 year old boy. My daughter is willing to allow me to have temp custody. Can this be done outside of the court?

Brette's Answer: No. You need to go to court and have a court order issued.

How long is it from the temporary custody hearing to the final hearing?

Jo's Question: How long is it typically from a temporary custody hearing to a final hearing? My husband just filed for divorce 2 months ago.

Brette's Answer: It really varies depending on the court calendar in your area. Call and ask the court clerk for an estimate.

Do temporary custody orders and parenting plans expire?

Tabitha's Question: We filed for a divorce almost two years ago. Will our temporary parenting plan expire if we don't continue with the divorce?

Brette's Answer: Yes, all temporary orders have an expiration date. You can get a permanent custody order if you do not intend to continue with the divorce, but depending on how your state's judicial system is set up, you might have to go to a different court to do so. If you and your ex agree, you can both appear in court without attorneys and tell the judge what you have agreed to and what you would like as a final order. If you are in agreement and what you are proposing is reasonable, the court will likely order it.

How long are temporary custody orders valid?

Trina's Question: How long is a temporary child custody agreement valid? My fiancé has temporary custody of his son, but the ex is threatening all of us. Since the temporary order is almost two years old, I was wondering if it has an expiration date.

Brette's Answer: A temporary order usually states on it how long it is valid for, which is usually until the next court appearance. If you are not currently in the middle of a court case, I doubt it is a temporary order and it is mostly likely a permanent order. You may have had a temporary order that was made final at the last court date.

Can I file for temporary custody if he's had our child for 10 years?

Bobbi's Question: My husband kicked me out ten years ago and took our daughter, who was only 10 months old at the time. That is the last I have seen of either one of them. Due to him moving so much, I was unable to keep in contact with my daughter. I want to file for a divorce now, and I am wondering if I can file for temporary custody and retrieve my child should I be able to find their location.

Brette's Answer: You can file, but it's very unlikely you would be granted temporary custody after such a long time apart. Most courts would want to reintroduce you to each other slowly since she will have no memory of you. I suggest you get an attorney to help you with this.

Can he keep the children away from me until after the divorce?

Question: After 18 years of marriage, I'm no longer in love with my husband. We've tried counseling and its not helping our marriage. We have three children (15, 12, and 9). I've told him that I want out but he says that he is going to keep the children and that I can only see them. I've told him that I want 50/50 custody but he won't discuss it when it comes up. Can he keep the children from me before the divorce process has been finalized?

Brette's Answer: If there is no court order, you and your spouse have equal rights to your children and he cannot keep them from you. If you are concerned, go to family court and get an order of custody and visitation before your divorce which will determine the issue of custody.

How can I keep him from taking our son while we are separated?

Question: We're separated and there are no court orders in effect. He has told me many times that he is going to take off with our son. Do I have to let him see our 6 month old? I told him that he could come here to see him, but he will not go for that. I am worried that he will take off with him and not let me see our baby.

Brette Answers: You need to head to family court and get an order of custody ASAP. Right now, you both have equal rights to your child. He could take your son and until you get a court order, there would not be much you could do. Go to court and ask for a temporary order immediately. If he contests it, you'll need to have a trial to decide the custody issue. Consulting with an attorney would be a good idea.

How can I get my son back if his father is threatening to take him?

Erika's Question: My boyfriend and I have been together 10 years and have a 7 year old together. He is controlling, doesn’t like my mom, and will not allow me to take my son near her. He tells me if I do and he finds out, he will take my son. Can he do that and if so how do I get him back.

Brette's Answer: Unless you have a custody order, you are both presumed to have equal rights to your child. If one parent takes the child and refuses to allow the other contact, that parent can file for a temporary order with the court to get the child back to have the right to contact. 

I am afraid that my husband might attempt to kidnap my son.

Erika's Question: My ex and I are splitting up and he has threatened to take our son and flee if I leave him. How I do to prevent this. I would like to share custody with my ex, but not if he is going to kidnap our son.

Brette Answers: You need to get an emergency temporary order of custody. If he has threatened to kidnap your child, you need to let the court know this is a concern. If your son has a passport, you need to get it and move it someplace your ex cannot access, such as a safe deposit box (find out more about protecting your child's passport after divorce). Instruct your child's school or day care providers not to release him to anyone but you. You need to talk to a lawyer ASAP.

What if he kicked me out and wouldn't let me take my son?

Bonnie's Question: My soon-to-be ex kicked me out of our apartment and wouldn't allow me to take our 6 month old son. I left my son with him, but have gone to visit my son on a daily basis. Now I am being told my ex can use "abandonment" against me to get custody of our son. What can I do? I do not want to lose custody of my son, but cannot stay in the apartment.

Brette: You can file for custody immediately and explain what happened and that you were the primary caretaker until then.

What if my ex took our son and won't give him back?

Marie Ann's Question: What should I do if my son was taken out of school by his father without me knowing, and he won't give him back? I don't feel like my son is safe in this fathers care because he is afraid of his father and no courts are open tomorrow.

Brette's Answer: You file an emergency petition on Monday. If you have a real reason to believe he's going to be physically harmed you can call social services and they will go out and investigate. If you have a custody order that specifically says he is to be with you, you could call the police.

How can a temporary child custody order be changed?

Darnetta's Question: I agreed to let the father get temporary custody of our son but we didn't go to court. He got the custody papers from a lawyer and we went to get it notarized, but I did not receive a copy of the document. I was wondering what actions can I take to get my son back, and how long can he have custody?

Brette's Answer: File a petition in family court for a modification in custody. If the father will not agree, you will have a trial and the judge will make a decision based on what is in the best interest of your child. The temporary child custody is in effect as long as the papers specified. If they did not specify, then it is indefinite. Good luck.

Can temporary custody be changed if he becomes homeless?

Donna's Question: My ex was awarded temporary custody of my son, but his house is about to go into foreclosure and he has no family he can live with. Can I get a modification to get temporary custody with me? I maintain my own residence and live alone.

Brette's Answer: Yes, if he has no stable living situation.

If my ex has temporary custody and dies, who gets the kids?

Ellen's Question: If my ex was granted temporary custody of our children and he passes away (dies) who would get custody of the children?

Brette's Answer: It would be up to the court, but likely you unless there is a compelling reason why you shouldn't.

Can temporary custody be changed if the DCFS charges are dropped?

Bianca Asks: Can my ex get custody of my one month son if they called Department of Children and Family Services on me? The charges were dropped and they have my son at the moment and refuse to give him back until we go to court.

Brette: You need to get the temporary custody order changed. If your court date is soon, you can do it then. If it is not, file an emergency petition for modification.

Is it illegal if he violates our separation agreement about custody?

Elizabeth's Question: My husband and I agreed that he would have physical custody of our 2 children until the beginning of next month. Now he says that he is filing for custody and that the children cannot leave the state until it is sorted out. If he signed a contract in our separation agreement stating he would give up physical custody of the kids on that date, is it illegal for him to keep my kids from me?

Brette's Answer: If the separation agreement was turned into a court order dictating custody and it specifically says custody is to change on that date, the order is valid - unless a temporary order has been issued by the court he has just filed with.

Help, the judge awarded temporary custody to him.

Melissa's Question: I am separated from my husband of 11 years. I've been a stay at home mom and the sole care-giver for our children, while he was the financial provider and that is all he contributed to the family. I began seeing someone new and he moved into my home a month ago. I recently found out that my husband was reported to DHS for neglect, and I told him I was going to request temporary custody because I was concerned for my children. He filed for custody before I ever got a chance. We went to court yesterday and I lost because I have a live in boyfriend. My side was never even heard. I've never went more than 48 hours without seeing my babies and now I only get to be a mommy 4 days a month. Any advice would be helpful.

Brette: It sounds like you had a temporary hearing which is short. You need to go to trial on this and have time to prove that it is in your children's best interest to live with you. Since you have a longer parenting history, that will help. Your attorney needs to get the DHS reports admitted into evidence. If you think the boyfriend is a problem, get him out. You need to work with your attorney to turn this around.

What if he lied to get temporary custody?

Shanda Asks: My soon to be ex-husband was granted temporary custody of our son and also got a restraining order against me. He told the judge lies to get this done. My ex is a felon and spent 7 years in prison for drugs. I have never been in any trouble. What should I do? I am terrified that I have lost my son forever.

Brette's Answer: Get an attorney for the permanent hearing.

Can I appeal a temporary custody order?

Question: If the judge orders temporary child custody, can you appeal the order?

Brette's Answer: You can appeal temporary orders, but often it makes little sense to, since by the time the appeal on the temporary order is heard, a permanent ruling will have been made. You always have the right to appeal and if you think you might want to pursue it, you need to file the appropriate paperwork quickly since there is often a small window in which you can file to protect your rights.

How can he claim that he has temporary child custody?

Tasha Asks: My ex and I have been separated for 7 months. Four months ago, he said that he can no longer pay support. I took the children to his house because I can't pay for child care. After one week he went to the courts to file an order for temporary child custody. There isn't anything signed by a judge and it has not be granted yet. He will not let me speak to the children when I call. I cannot afford an attorney right now. What are your suggestions for me?

Brette's Answer: It is possible a judge granted him custody of the children, since they had been with him for so long. If a permanent order has been granted to him without any notice to you, you can have it overturned. Go to your family court and ask to see any papers that have to do with you so you can determine what is going on. You might also find out if there is a free legal services agency in your vicinity that might be able to help you with this.

If he doesn't pay child support, you need to contact the state child support enforcement office and tell them and ask for it to be enforced. If you are having financial difficulties, you should also talk to your state social services department and ask for assistance. Good luck.

When does he have to return her after I get temporary custody?

Holly's Question: I was granted temporary child custody, but her father has her in another state. How long does he have to return her to me?

Brette's Answer: It should be immediate. Good luck.

Can I get temporary custody of my grandchild?

Pat's Question: My 19 year old daughter just had a baby, and neither she nor the baby's father has a job. They are both too immature to raise our granddaughter and I fear for her. What steps can we take to get temporary custody?

Brette's Answer: Immaturity is not grounds for a grandparent to take custody, unless you can offer specific instances of mistreatment. It sounds like the best thing you can do is be supportive and be a resource for her to turn to. There are many women younger than 19 who successfully raise children. Offer to provide child care so she can look for a job. You should also recall how hard it is to pull yourself together after having a baby. Maybe she is even depressed. Offer encouragement. If you feel the child is in danger take action, however keep in mind that the best way to help her is to support her. Good luck.

Can we get temporary custody of our grandchild if my daughter agrees?

Candice's Question: My daughter is unable at this time to care for her 4 1/2 year old daughter. She is unstable and for the sake of our granddaughter, it is best to live with us. We want to fill out papers to have temporary custody. The father is not listed on the birth certificate. How do we make this legal?

Brette: You can go to court and file papers. If your daughter is in agreement, it will be a very simple matter. If the father is not listed and is "unknown" he needn't be notified.

Can I get custody if the state took my grandchild from her parent’s home?

Teri's Question: How do I get temporary custody of my grandchild when custody has been taken away from her parents due to allegations of abuse? The abuse is not factual or actual. She was born premature and has developed some bone fractures. There is no physical evidence of bruising or shaken baby. She had a calcium deficiency in the hospital and is even being tested for OI (brittle bone disease). I just want to know how I can get to see her in the hospital or get temporary custody.

Brette's Answer: You need to contact the social services caseworker and ask that she be placed with you. If she has been taken from her parents, she is in the custody of the state.

Will I get full custody if I have temporary custody of my grandchild?

Laura's Question: My daughter had a little girl 4 months ago, and the baby has been with my husband and I ever since in order to keep the baby in a safe environment. My daughter has ADDHD, MANIC, and she is BI-POLAR will not stay on her meds. She already has another little boy, and now the other grandparents have custody of the boy. She has agreed to give me Temporary custody. Will I be able to get full custody?

Brette: I think you should consider an adoption. You'll need her consent, but it's the best way to get this resolved permanently.

Brette 144x162Brette Sember Family Law Expert

© WomansDivorce.com 

Additional Information: